Ontario abandons its principles (a good thing)

The long-delayed changes to the Ontario Heritage Act will — finally — take effect on July 1.

A June 1 email from MHSTCI Assistant Deputy Minister Kevin Finnerty announced that the OHA amendments, part of Bill 108, an omnibus bill passed over two years ago on June 6, 2019, will be proclaimed and come into force at the first of next month. As will the implementing regulation, which was released in its final form. The email also addressed the third piece of the package — updates to the advisory materials making up the Ontario Heritage Tool Kit: Draft materials would be available for public comment on the province’s Environmental Registry until July 1 and the final revised Tool Kit would be ready by the fall.

Now, way back in the spring of 2019, municipal and heritage stakeholders had greeted (?) Bill 108 with — to be charitable— a mixed reaction. Part of it was the government’s unseemly and disrespectful rush to pass the bill, which allowed for only a sham of a consultation on major, far-reaching changes to the Act. Part of it was that many of the changes themselves seemed questionable, or worse.1

A good number of the amendments required detailed regulations to be prepared and approved, and MHSTCI, freed of the juggernaut driving the bill itself, dutifully came forward in January of 2020 with proposals for regulations and held stakeholder consultations. The ministry also mentioned that the 2006 Tool Kit would be updated and there would be consultation on that too.

While no timeframe was given the expectation was that everything would be more or less in place by July 1, 2020.

Then came the pandemic, signs that new Minister MacLeod’s priorities lay elsewhere, and who-knows-what-other internal delays.

Eventually by September an almost 20-page omnibus regulation was posted on the Environmental Registry for a 45-day comment period.

That was pretty much the last any of us had heard about this for most of a year, until the June 1 announcement. It was, on some level at least, reassuring to know that the whole thing had not foundered in some bureaucratic black hole.2

The protracted process has often been one of “hurry up and wait.” Or, with a rather niggardly 30 days to finally see and respond to five draft Tool Kit guides, “wait and hurry up.”

A quick perusal of the final regulation, known as O. Reg. 385/21, reveals no significant changes from last year’s draft (no surprise there) — except for one. Something is missing.

The principles are gone!

You’ll recall that Bill 108 provided for principles (twice, at the beginning of Part IV and the beginning of Part V): a municipal council would be required to consider the principles when exercising certain decision-making powers under the Act.3 The principles, and when they would apply, would be prescribed by regulation.

And the draft regulation of last fall did set out three principles. They were high-level, bland and consisted of things municipalities would consider anyway. There were no “musts” or “shalls.” One said: “Property that is determined to be of cultural heritage value or interest should be protected and conserved for all generations.” Another talked about how the conservation of heritage properties should be achieved through identification, protection and wise management (and then got a bit entangled with the meaning of “adaptive reuse”).

Now the principles have been ditched. The enabling provisions in the OHA will not be proclaimed on July 1. What happened here?

The ministry’s “decision” notice on the Environmental Registry says:

Principles:

• Many submissions suggested changes to the principles, including changes to the definition of adaptive reuse. Some submissions raised concerns that the principles do not go far enough to align with the Housing Supply Action Plan and the broader planning priorities of the Provincial Policy Statement.

• Ministry response: Principles have not been prescribed in the final regulation. The ministry will be monitoring implementation of the amendments and the regulation to determine if principles should be prescribed at a later time.

Reading between the lines here … nobody liked the principles.

Municipalities and heritage groups were not enamoured of the concept of principles in the first place. With a few quibbles about wording, they would have held their noses and acquiesced to a few innocuous, guideline-style statements (some might have preferred stronger conservation statements, more akin to standards).

The development industry, on the other hand, liked the concept of principles — it was their idea after all — but did not like the actual principles the ministry proposed. They did not “go far enough” in another way. Translation: They were too namby-pamby, glossed over the property owner’s interests and did not explicitly promote housing/development priorities.

What the developer group was really looking for was to put another thumb on the scale in favour of development when it came to municipalities making decisions about the fate of heritage properties. Precisely what heritage organizations and municipalities did not want to see.

So, no consensus on the principles, not even close! Commendably, the ministry backed off and dropped them from the regulation, while keeping the door open just a crack to prescribing them later.

The poor principles — frankly, a policy looking for a problem — had to go. They won’t be back any time soon.4

Note 1: See the OHA+M article “What to make of Bill 108” here.

Note 2: The continued delays and long silence even spawned the (admittedly farfetched) idea that, should they could go on for just another year,  a new government might nix the whole exercise.

Note 3: Exposing a distrustful and paternalistic attitude toward municipalities, the principles were not applicable to the Minister’s decisions under the Act.

Note 4: There are uncanny parallels here to the ministry’s fraught experience in 2005. Then powerful church organizations lobbied for an OHA regulation compelling municipalities to consider ”factors” in exercising their new demolition control powers under Bill 60. Consultations with stakeholders on the factors yielded no common ground and the idea, which would have seriously weakened the legislation, was shelved. From “The churches versus Bill 60”:

The faith groups would go along with strengthened controls on demolition but insisted that their exercise by municipalities be tempered by a list of “factors,” the key one being the financial circumstances of the property owner. They preferred this be done via a regulation that mandated consideration of the factors ... ...

... Later that year the ministry carried through on its agreement to consult on factors to be applied in decisions by municipal councils (and, on appeal, the Ontario Municipal Board) and the results were predictable — the faith groups wanted them, virtually everyone else didn’t.